APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) from an order of the circuit court which reversed a decision of defendant (hereafter called the Fund) denying plaintiff duty disability benefits.
It appears that plaintiff, a member of the Fund, was in the employ of the Chicago Board of Education as a window washer when, on June 11, 1974, he was injured in a work-related accident. He filed an application for benefits with the Fund in which he stated that he had injured his right ankle and knee. On August 21, 1974, the Fund, without conducting a hearing, granted him duty disability benefits for the period between June 21 and June 30, 1974, and ordinary disability benefits until his credit expired on August 31, 1975. *fn1
Plaintiff then sought Workmen's Compensation benefits and, in January 1977, a lump sum settlement contract was approved by the Industrial Commission whereby plaintiff agreed to accept from his employer the sum of $10,204.95 for 63% permanent partial loss of the right leg and all medical and hospital expenses. It appears that he had also received $1,715.10 in temporary benefits. In March 1978, plaintiff applied for and received a refund of his annuity contributions to the Fund in the amount of $5,323.69.
On June 14, 1978, an attorney for plaintiff requested by letter "that a hearing time and date be set to present evidence as to why John Chandler should be granted a duty disability benefit retroactive to June 11, 1974." On July 31, 1978, the executive director of the Fund replied by letter that a hearing was granted. At this hearing, plaintiff testified in substance that while working as a window washer he fell on his right side — injuring his back, right knee, and right ankle; that he has not worked since the day after the accident and had continued pain in his back and right leg; and that he was unable to work due to the difficulty experienced in standing, walking, and lifting heavy objects. Offered and received in evidence were the Workmen's Compensation lump sum settlement contract, hospital records, reports of doctors, numerous prescriptions, and paid medical bills. On April 19, 1979, the Fund denied plaintiff's request for duty disability benefits.
On February 5, 1980, the circuit court reversed, finding that plaintiff was entitled to duty disability benefits beginning June 14, 1978, to be paid at the rate of 50% of his salary in view of his "pre-existing condition of ill-being" and allowing the Fund a credit for monies received by plaintiff under the Workmen's Compensation Act and the contributions returned by the Fund in the form of a setoff for any benefits plaintiff would have been entitled to during the period from June 21, 1974, through June 13, 1978, but in no event was the Fund to receive a setoff against any claim for disability commencing June 14, 1978.
• 1, 2 The principal contention by the Fund is that by receiving a refund of his annuity contributions, plaintiff surrendered and forfeited all rights to any benefits including any claim for duty disability. In support thereof, it cites section 8-168(2) of the Pension Code (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 8-168(2), as amended by Ill. Rev. Stat., 1980 Supp., ch. 108 1/2, par. 8-168(2)) (the Code), which provides in part:
"Upon [the employee's] receipt of the refund [of his annuity fund contributions], the employee surrenders and forfeits all rights to any annuity or other benefits, * * *."
We note, however, that section 8-168 is entitled "Refunds — Withdrawal before age 55 or with less than 10 years of service" and that the "employee" mentioned in section 168(2) is identified in section 168(1) (Ill. Rev. Stat. 1977, ch. 108 1/2, 168(1), as amended by Ill. Rev. Stat., 1980 Supp., ch. 108 1/2, par. 168(1)), as follows:
"An employee, without regard to length of service, who withdraws before age 55, and any employee with less than 10 years of service who withdraws before age 60, shall be entitled to a refund of the accumulated sums to his credit, as of the date of withdrawal, * * *."
Plaintiff was 61 years old when he withdrew his annuity contributions and, thus, section 8-168(2) is not applicable to him. Moreover, we disagree with plaintiff's argument that this case is governed by section 8-171 of the Code (Ill. Rev. Stat. 1977, ch. 108 1/2, par. 8-171 as amended by Ill. Rev. Stat., 1980 Supp., ch. 108 1/2, par. 8-171), which provides in pertinent part:
"In lieu of an annuity, an employee who withdraws and whose annuity would amount to less than $100 a month for life, may elect to receive a refund of his accumulated contributions for annuity purposes, based on the amounts contributed by him."
There has been no showing by plaintiff that his annuity would amount to less than $100 a month for life and, as a matter of fact, an exhibit in the record which is a letter from the executive director of the Fund to plaintiff states that his pension ...